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Published by Pusat Penelitian dan Pengkajian Perkara dan Pengelolaan Perpustakaan Mahkamah Konstitusi Republik Indonesia

ISSN : 18297706 EISSN : 25481657 DOI : https://doi.org/10.31078/jk1841

Core Subject : Humanities, Social,

Humanities Law, Crime, Criminology & Criminal Justice

The aims of this journal is to provide a venue for academicians, researchers and practitioners for publishing the original research articles or review articles. The scope of the articles published in this journal deal with a broad range of topics in the fields of Constitutional Law and another section related contemporary issues in law.

Arjuna Subject : Ilmu Sosial - Hukum

Articles 10 Documents

Search results for , issue "Vol. 18 No. 1 (2021)" : 10 Documents clear

Perdebatan dan Fenomena Global Legalisasi Pernikahan Sesama Jenis: Studi Kasus Amerika Serikat, Singapura, dan Indonesia Anna Triningsih; Oly Viana Agustine
Jurnal Konstitusi Vol. 18 No. 1 (2021)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Same sex marriage is currently an international and controversial issue. The issues drive people from around the world, with different culture, religion, and countries into a dividing debate: is same-sex marriage needs to be legalized or banned? The debates brought some countries in different stances, some legalize, some ban and criminalize, and some without clear or specific rules in banning or legalizing it. Due to the differences found between countries, this research aims to provide answer and conclusion to this crucial question: is same-sex marriage is a universal human rights, in which countries should recognize and legalize it? The results of this study show that same-sex marriage is not a phenomenon or a right that can be accepted and recognized in all countries, cultural settings, and religions. Therefore same-sex marriage does not fulfill the requirements to be said as a universal human right which absolutely must be recognized, accepted, and fulfilled by all countries (without exceptional) in the world. Therefore, the policy to legalize or prohibit same-sex marriage is entirely an open legal policy which can be freely chosen by each sovereign state. There is no obligation under international law to legalize or prohibit that matter because it is not a universal human rights and moral standard which can be enforced recognition and fulfillment in every country.

Prospek Penjatuhan Putusan Provisi dalam Perkara Pengujian Undang-Undang Iskandar Muda
Jurnal Konstitusi Vol. 18 No. 1 (2021)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Provisional petition is not common in judicial review cases. This paper seeks to find the basis for submitting a provisional petition and the pattern of ruling on the provisional petition. The results showed that there were three things that became the basis for the petition for provisions, namely: (i) there were allegations of criminal acts in the formation of the law that was petitioned for review; (ii) protecting the constitutional rights which are seriously threatened and cannot be restored in the final judgment; and (iii) the urgent need for time to obtain a judge’s decision before the election, especially with regard to the right to vote and be elected. There were three pattern of rendering decisions on provisional petition, namely (i) dropped when the case examination process is ongoing and stated in writing before making the final decision; (ii) pronounced orally in court when the case examination process is ongoing and then reaffirmed in writing in the final decision; and (iii) decided simultaneously with the subject matter of the petition in the final judgment.

Konsep Pengujian Formil Undang-Undang di Mahkamah Konstitusi Idul Rishan
Jurnal Konstitusi Vol. 18 No. 1 (2021)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

This study focuses on the concept of judicial review of the legislative process in the Constitutional Court. There are two research objectives to be obtained. First, the reasons for the need for judicial review of the legislative process in the Constitutional Court. Second, to offer the concept of judicial review of the legislative process in the Constitutional Court. This doctrinal legal research uses secondary data. The results of this research show that there were three factual reasons for the need for judicial review of the legislative process in the Constitutional Court. First, related to the reasons for the conception of the review. Second, the development of democracy. Third, the need for praxis. The results of this research refute the perception that judicial review of the legislative process does not have an obvious coordinate point under the constitution. Using the Rubenfeld approach, the constitution also accommodates the protection of the citizens’ constitutional rights in the due process of law-making.

Konstitusi Desa dan Eksistensinya dalam Regulasi di Indonesia Marthen B. Salinding
Jurnal Konstitusi Vol. 18 No. 1 (2021)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Herman Heller means that the constitution has 3 (three) phases: the constitution as a reality; the constitution in the abstraction process; and the constitution in codification. A constitution that has passed through the codification cycle is a mirror that it has found its existence and its position as a reality of socio-political life in society, or at least the constitution can describe the concept of Fundamental of a country’s community-thinking society. To interpret the understanding, the context of the Constituent Assembly as an abstraction of the value of dynamic living in the community (law and change of society), especially the village community in the period of reform that has undergone significant shifts because of abstraction errors on the constitution. Positioning the village as one of the sub-systems governance that has existed during the state of the archipelago (before Indonesia), the village has positioned the constitution at that time without passing the abstraction to codification. Thus the form of the constitution as the law contained therein rests on the provisions of the Godhead (natural law) far from the conception of value built on the rationality schemes and regulatory logic. Through normative juridical research methods and 3 (three) approaches: Historical approach, conceptual approach, and statue approach, the purpose of this research is to trace the significance of the village constitution as a unity of the village society’s reality by analyzing the context of historical and the things that are behind the trend of the conception of village society before the constitution passed the codification phase and the existence of the village constitution itself in regulations reflected in the law of the Republic of Indonesia number 6 the year 2014 about the village.

Konsep Regulasi Berbasis Risiko: Telaah Kritis dalam Penerapannya pada Undang-Undang Cipta Kerja Akhmad Yasin
Jurnal Konstitusi Vol. 18 No. 1 (2021)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

The Law on Job Creation emphasizes the ease of doing business. One of the things that is of concern is the simplification of business permit. The concept of risk-based regulation is attractive to simplify the programs due to the assumption that it may cut off a number of licenses. However, the application of risk analysis to screen permits is something different from other countries. In addition, the application of risk-based regulations also needs to pay attention to the critique that is not accommodated in the Law. This paper describes 4 (four) critiques of the application of risk-based regulation in the Law, (i) the omnibus format confuses risk assessment, (ii) volatility risk has not been considered, (iii) systemic risk has not been considered and (iv) potential “regulatory capture”. Conceptually, the application of risk-based regulation has sparked an academic discourse regarding the broad understanding of regulation that has evolved far from the narrow meaning in academic discourse in Indonesia which defines it only as a statutory regulation.

Menimbang Model Pengujian Keputusan Pejabat Publik oleh Mahkamah Konstitusi Republik Indonesia (Studi Perbandingan Indonesia dan Korea Selatan) Yunita Nurwulantari; Anna Erliyana
Jurnal Konstitusi Vol. 18 No. 1 (2021)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Testing public officials decision in Indonesia, which has been the authority of the State Administrative Court (PTUN) should be done through a constitutional complaint mechanism, written under the authority of the Constitutional Court of the Republic of Indonesia (MKRI). This is due to all public officials have the potential to perform acts that violate or harm the constitutional rights of citizens as guaranteed in the 1945 Constitution (UUD 1945). This additional authority to examine and decide cases of constitutional complaints should be possible in the framework of carrying out the functions of the Constitutional Court as the guardian of the constitution as implemented in countries that apply the principle of constitutional supremacy, one of which is as applied in the Constitutional Court of The South Korea. Even though South Korea has an administrative court which also has the authority to examine the decision of public officials, South Korea still open space for its citizens to file constitutional complaint in Constitutional Court of South Korea when there is a public official decision that harm and violating the constitutional rights of the citizens that have been guaranteed in constitution. Thus, when all legal remedy for violations of constitutional rights as a result of the issuance of public official decision has been exhausted, but violations still occur, then this constitutional complaint mechanism into the need to provides maximum protection and respect the constitutional rights of citizens. Therefore, the additional authority to examine and decide constitutional complaint can not be separated from the authority of the Constitutional Court.

Implikasi Omnibus Law Terhadap Hak Konstitusional Atas Lingkungan Hidup Yang Sehat Ahmad Gelora Mahardika
Jurnal Konstitusi Vol. 18 No. 1 (2021)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

One of the goals of the formation of the omnibus law is to increase the index of ease of doing business in Indonesia, which is currently far behind other countries. One effort that was then carried out by the government was to cut down a number of permits, one of which was an environmental permit, namely the obligation to complete EIA and UKL-UPL documents. However, this regulation is actually contradictory to the spirit of sustainable development (SDGs) which development must be in line with environmental protection. The action also has the potential to violate Article 28H paragraph (1) of the 1945 Constitution which requires the state to ensure the protection of citizens' constitutional rights to a clean and healthy environment. Especially in countries that have the highest business ease indexes, such as Denmark, South Korea and the United States, the issuance of EIA documents is mandatory and is carried out strictly. Therefore this article will try to look at the implications of the omnibus law for citizens' constitutional rights to a clean and healthy environment.

Pemikiran Hukum Progresif untuk Perlindungan Hukum dan Kesejahteraan Masyarakat Hukum Adat Muh. Afdal Yanuar
Jurnal Konstitusi Vol. 18 No. 1 (2021)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Today there are still many problems with the existence and traditional rights of indigenous and tribal peoples. These problems tend to place the indigenous and tribal peoples in a weak and marginalized position. Not without reason, it is due to the unequal perception of all related parties, in positioning customary land and indigenious peoples in the context of national and state life based on Pancasila and the Constitution. The issue that will be discussed in this paper is about how to realize progressive legal protection of the existence of indigenous and tribal peoples to realize their welfare. This paper will use the conceptual approach method, namely the Pancasila concept as a source of ideas in providing legal protection to indigenous and tribal peoples. Furthermore, it also uses a conceptual approach from thought of progressive law. The existence of the status quo in providing legal protection to indigenous and tribal peoples which tends to be static, conditional and legalistic which has been done so far. Legal protection is more concerned with how the criteria regarding indigenous and tribal peoples will be recognized. The state should have dared to make policy and legal breakthroughs to provide legal protection based on guidance and empowerment. These policy and legal breakthroughs can refer to thougt of progressive law, which positions the law for humans with the aim of providing justice, welfare and happiness for indigenous and tribal peoples based on Pancasila and the Constitution.

Perlindungan Hak-Hak Konstitusional Masyarakat Adat di Kabupaten Boalemo dalam Penerapan Sanksi Adat Lisnawaty W Badu; Julisa Aprilia Kaluku; Abas Kaluku
Jurnal Konstitusi Vol. 18 No. 1 (2021)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Problems with indigenous people in Boalemo district, Gorontalo Province often occur, especially the issues about the imposement of costumary sanctions. Imposing costumary sanctions without clear relugations will absolutely cause legal consequences in the future. Eventhough constitutional rights for indigenous people is already granted by the government as stated In article 18B paragraph (2), and Article 28 I paragraph (3) of The 1945 Constitution Of Republic Indonesia. This regulation is a mandate from the state and given to the regions. This regulation is oftenly referred when discussing the existence and rights of indigenous peoples and become a crutial issues when it comes to the implementation of the protection of the constitutional rights for indigenous peoples in Boalemo district Gorontalo Province. Therefore, This research aims to analyze the Legal standing for indigenous people and constitutional rights for costumary sanctions in Boalemo district Gorontalo Province. This normative research utilized secondary data as resourch and used statute approach and case approach. The results of the study discover that the costumary law and the imposement of costumary sanctions are still mantained and implemented in Indonesia. Government should more concern about constitutional rights compliance for indigenous people. However, the imposement of customary sanctions are not regulated in a regional regulation. So the constitutional rights which should become the spirit for regional autonomy to provide justice in a judiciary are only resolved by way of deliberation, This can not give the satisfaction for some parties.

Polemik Fungsi Sosial Tanah dan Hak Menguasai Negara Pasca UU Nomor 12 Tahun 2012 dan Putusan Mahkamah Konstitusi Nomor 50/PUU-X/2012 King Faisal Sulaiman
Jurnal Konstitusi Vol. 18 No. 1 (2021)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

This study examines, Firstly, aspects of the formation of Law Num. 2/2012. Secondly, interpretation of the meaning of development in the public interest. Thirdly, the compensation process for the release of land rights for development. Finally, polemic of MK's Decision Num. 50/PUU-X/2012. The findings show, procedural aspects of the formation of Law Num. 2/2012, is not in accordance with the rules for the formation of applicable laws. Likewise, the meaning conception of the public interest and the process of compensation for land is still far from the spirit of the Law Num. 5 of 1960 (UUPA) Jo Article 33 of the 1945 Constitution. The Post of MK's Decision Num. 50/PUU-X/2012, there needs to be a legislative review of Law Num. 2/2012, to deconstruct the meaning of “social function of the land” to conform to the philosophy of Article 33 of the 1945 Constitution and the Law Num. 5 of 1960 (UUPA). The Parliament must immediately complete the Agrarian Structure Renewal and Arrangement Bill, the Agrarian Conflict Resolution Bill, and the Natural Resource Management Bill, as mandated by MPR Decree Num. IX/2001 Jo Tap MPR Num. V/2003. Development in the public interest, must be placed in the spirit of social and agrarian reform in order to achieve maximum prosperity for the people.

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Abdul Basid Fuadi

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jurnalkonstitusi@mkri.id

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+6281215312967

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jurnalkonstitusi@mkri.id

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Pusat Penelitian dan Pengkajian Perkara dan Pengelolaan Perpustakaan Mahkamah Konstitusi Republik Indonesia Jl. Medan Merdeka Barat No. 6, Jakarta 10110 Telp: (021) 23529000 Fax: (021) 3520177 E-mail: jurnalkonstitusi@mkri.id

Location
Kota adm. jakarta pusat,

Dki jakarta

INDONESIA

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Home Page

OAI Link

Editorial Team

Contact

Reviewer

Google Scholar

Contact Name Abdul Basid Fuadi

Contact Email jurnalkonstitusi@mkri.id

Phone +6281215312967

Journal Mail Official jurnalkonstitusi@mkri.id

Editorial Address Pusat Penelitian dan Pengkajian Perkara dan Pengelolaan Perpustakaan Mahkamah Konstitusi Republik Indonesia Jl. Medan Merdeka Barat No. 6, Jakarta 10110 Telp: (021) 23529000 Fax: (021) 3520177 E-mail: jurnalkonstitusi@mkri.id

Location Kota adm. jakarta pusat, Dki jakarta INDONESIA

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Contact Name
Abdul Basid Fuadi

Contact Email
jurnalkonstitusi@mkri.id

Phone
+6281215312967

Journal Mail Official
jurnalkonstitusi@mkri.id

Editorial Address
Pusat Penelitian dan Pengkajian Perkara dan Pengelolaan Perpustakaan Mahkamah Konstitusi Republik Indonesia Jl. Medan Merdeka Barat No. 6, Jakarta 10110 Telp: (021) 23529000 Fax: (021) 3520177 E-mail: jurnalkonstitusi@mkri.id

Location
Kota adm. jakarta pusat,

Dki jakarta

INDONESIA